Fire Cider – Trademark Ignorance Brewed Controversy

A couple weeks ago I tweeted a link to this article run by The BostonGlobe about a trademark battle over the term “Fire Cider” as an herbal drink that remedies a wide array of maladies.

A very brief summary: A company called Shire City Herbals based in Pittsfield, MA filed for and received Federal trademark protection with the U.S. Patent and Trademark Office. Once the herbalist community caught wind of this, there was a firestorm and a “Free Fire Cider” movement began.

The Globe’s article painted a pretty black and white picture about the situation, implying that “fire cider” is a widely recognized generic term and that Shire City has essentially “stolen” it from the herbal community. My first thought after reading the article was to wonder if any of these companies crying foul had earned common law rights that may supersede Shire City’s claim to the mark – hence this tweet:

The next day Amy Huebner, co-founder of Shire City, tweeted at us with links to more information regarding the various claims and disputes that had resulted from the Free Fire Cider backlash. The Free Fire Cider movement had orchestrated boycotts of the product, and in some cases Fire Cider was pulled from shelves. As evidenced by the Globe article, they were successful in getting press coverage for their movement as well.

I reached out to Amy to ask her a few questions. I mainly wanted to know if any companies had come forward claiming prior common law trademark rights for commercial use of Fire Cider (the answer to this was, in short, no). But when we began talking it became obvious that the real story lay in the ignorance of the way trademark law worked in general – not just common law rights like we’re used to seeing at Cognate.

In the Globe article, one of the herbalists currently involved in a suit with Shire City and a leader of the Free Fire Cider movement was quoted as saying “We are not lawyers. We are herbalists. So we are very confused. How can this happen?”

This much is evident, and I think both sides would have been better served had the herbalists taken the time to fully understand what was happening before engaging in a takedown campaign. Fire Cider had already been Federally registered by Shire City, and several of the lawsuits only arose after the Free Fire Cider movement gained widespread exposure.

Huebner said the initial problems started from a miscommunication. “When we first noticed people using our trademark on Etsy, we were advised by our lawyer to use Etsy’s standard procedure for trademark infringement but that resulted in some herbalists having their [Etsy] stores completely shutdown, which we didn’t realize would happen.”

It seems like this is where most of the confusion bgan. A couple of small vendors got shutdown due to a legal claim for a name they thought was generic, and probably assumed they were under attack by a big corporation. Confused and angry they appealed to the healing community at large, and without fully understanding the situation they rallied around the cause.

Once Shire City realized what was happening to the vendors they tabbed through Etsy’s infringement system, they started reaching out to vendors on an individual basis to ask them to stop using their mark instead of using official channels.

“We’ve had a lot more success that way,” said Huebner. “Some people change their name and still hate us, but a lot of people understand once we explain it to them. We’ve even offered to help cover the cost of printing new labels for vendors who have to change their names.”

Huebner also reiterated that they have no intention to stop people from using similar recipes.

In the end, Shire City’s intentions and the wishes of the herbalist community are moot, and this will come down to whether or not the USPTO finds “fire cider” to be a common or even generic term for these types of products. In the meantime Shire City is legally obligated to police their trademark, or risk losing it altogether.

Follow @CognateTM for more stories like this one.Bennett is not a lawyer, nothing in this blog should be construed as a legal opinion.